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Gregory v. Hardgrove

Supreme Court of Kentucky

December 13, 2018



          COUNSEL FOR APPELLANT: Thomas E. Carroll Lance Wilson Turner CARROLL 86 TURNER, PSC




         By statute, a tort claimant's right of action against a tortfeasor generally survives the latter's death. KRS[1] 411.140. The issue we resolve in this case is whether the Court of Appeals erred in affirming the Pulaski Circuit Court's dismissal of Steve Gregory's claim against the heirs of Harold Hardgrove (the "Decedent") seeking to enforce a judgment lien against real property owned by the Decedent at his death. The Court of Appeals affirmed the trial court's dismissal of Gregory's complaint seeking to intervene in a foreclosure action filed by Cumberland Valley National Bank and Trust Company ("CVNB"). In its foreclosure action, CVNB sought to enforce its mortgages against the Decedent's real property. The trial court held that Gregory failed to state a claim for which relief could be granted because at the time of death, the Decedent's real property passed to his heirs at law immediately, subject only to the claims of "creditors." Finding that Gregory's pending tort claim against the Decedent did not qualify him as a "creditor," the trial court dismissed his claim. The Court of Appeals affirmed. Upon review, we conclude Gregory's tort claim, which accrued prior to the date of death, made Gregory a creditor of Hardgrove and now his Estate. Accordingly, we reverse and remand.

         I. Factual and Procedural Background.

         In the fall of 2008, Gregory was injured while attending races at Lake Cumberland Speedway, owned by Hardgrove. Gregory filed a civil action against Hardgrove in March 2009.[2] In August 2009, Hardgrove died intestate, survived by his children and heirs at law, Brandon Hardgrove and Casey Hardgrove. Brandon Hardgrove was appointed Administrator by the Pulaski District Court on October 28, 2009. Gregory timely revived his action against Hardgrove's Estate. KRS 395.278. The record also indicates that Gregory filed a proof of claim against the Estate pursuant to KRS 396.011, 396.015.[3] In December 2013, the Pulaski Circuit Court, First Division, entered a judgment in favor of Gregory against the Estate in the amount of $172, 780.16, and interest at 12% per annum from and after the date of entry.

         At the time of the Decedent's death, as listed on the Estate's Inventory and Appraisement, he owned three parcels of real property, with an estimated value of $310, 000.[4] In February 2014, Gregory filed a judgment lien against the Estate's property.

         In a separate action filed in February 2013, [5] CVNB filed a foreclosure action with respect to the Decedent's real property to collect the balance due on promissory notes executed in 2002 and 2008. These loans were secured by mortgages filed in the Pulaski County Clerk's office. Named defendants were the Hardgrove heirs; state and local governments; various lessees of portions of the real property; other interested parties with respect to unpaid real estate taxes; and Kathy Owens, another judgment creditor. Gregory was not named. In April 2014, Gregory filed a motion to file an intervening complaint in CVNB's foreclosure action on the property owned by Harold Hardgrove at the time of his death. The trial court granted the motion. In his complaint, Gregory raised the existence of his judgment against the Estate, and further alleged that the Estate's personal property was insufficient to satisfy his judgment. As a result, Gregory requested that the real property be sold to satisfy his judgment and claim against the Estate.

         Gregory later filed a motion to amend his intervening complaint to include the Decedent, Brandon, as Administrator of the Estate, and Hardgrove's heirs, Brandon and Casey.[6] The trial court granted the motion. Subsequently, however, the trial court dismissed Gregory's claim and denied his Motion to Alter, Amend, or Vacate, holding that since Gregory's claims were "inchoate" at the time of the Decedent's death and the real property passed to the heirs upon death subject only to liens then existing, Gregory's postmortem judgment and judgment lien against the Estate could not attach to the real property. As a result, the trial court held that the Decedent's real property, through intestacy, passed free and clear of Gregory's claim. The trial court made its Order final and appealable. CR[7] 54. Gregory appealed, and the Court of Appeals affirmed. We granted discretionary review. Before us, Gregory argues that he has a claim against the property which descended to the Decedent's heirs, and as to which KRS 395.510 and 395.515 provide him a remedy. We agree.

         II. Standard of Review.

         "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox. v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).

         III. ...

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